(9.2.1.Secs = (9.2.1.secs = (9.2.1.1.sec = Scheduled Outage Expected DurationAdvance Notice to BPA) (9.2.1.2.sec = (1) Less than 2 days at least 24 hours) (9.2.1.3.sec = (2) 2 to 5 days at least 7 days) (9.2.1.4.sec = (3) Major overhauls (over 5 days) at least 90 days) ) ) ) ) (9.2.1.00.sec = >) ) ) (9.2.2.Sec = (9.2.Ti = (b) Facility Operation and Reliability Standards)
(9.2.2.sec = (2) Seller shall not schedule any planned maintenance outages for the entire Facility during any weekday of an On-Peak Month without the prior written approval of BPA not to be unreasonably withheld, delayed or conditioned.) ) (9.2.3.Sec = (9.2.3.Ti = (c) Operations Record)
(9.2.3.sec = Seller shall maintain an operations log, which shall include information on the Actual Average Annual Output of the BPA Wind Turbines, planned and unplanned maintenance outages, circuit breaker trip operations requiring a manual reset, partial deratings of equipment, and any other significant event related to the operation of the BPA Wind Turbines. The operations record shall be available for inspection by BPA upon reasonable advance request, and Seller shall make the data available on a real-time basis by remote access to BPA, if BPA acquires the necessary equipment and software license to process the data by remote access.) ) (9.2.4.Sec = (9.2.4.Ti = (d) Monthly Reports)
(9.2.4.sec = Seller shall provide to BPA a monthly report, by no later than thirty (30) days after the end of each calendar month, with such information and in such form as BPA shall reasonably request, by electronic mail and in hard copy, regarding the operations of the BPA Wind Turbines. Each monthly report shall include: all reporting information maintained in the operations record; data on the wind during the month, a comparison of the available wind energy compared to the actual wind energy generated during the month, and hourly output of the BPA Wind Turbines. The monthly report shall also include an estimate of monthly output for the calendar year and such other information related to the operation of the BPA Wind Turbines that BPA reasonably requests.) ) (9.2.5.Sec = (9.2.5.Ti = (e) Operating Committee and Operating Procedures)
(9.2.5.sec = (9.2.5.0.sec = >) (9.2.5.xlist = (9.2.5.Olist = - (9.2.5.Secs = (9.2.5.secs = (9.2.5.1.sec = (1) BPA and Seller shall each appoint one delegate and one alternate delegate to act on matters relating to the operation of the BPA Wind Turbines under this Agreement. Such delegates shall constitute the Operating Committee. The Parties shall notify each other in writing of such appointments and any changes thereto. The Operating Committee shall have no authority to modify the terms or conditions of this Agreement.)
- (9.2.5.2.sec = (2) The Operating Committee shall, acting reasonably, develop mutually agreeable written operating procedures (“Operating Procedures”) in draft form no later than thirty (30) days prior to the expected Completion Date. Operating Procedures shall include, but not be limited to: method of day-to-day communications; metering, telemetering, telecommunications, and data acquisition procedures; operating and maintenance scheduling and reporting; operations log; and such other matters as may be mutually agreed upon by the Parties. The agreed upon Operating Procedures shall be provided and distributed within ninety (90) days following the Completion Date.)
)
) ) ) (9.2.5.00.sec = >) ) ) ) ) ) (9.2.00.sec = >) ) ) ) ) ) (9.00.sec = >) ) ) (10.Sec = (10.Ti = Default and Termination)
(10.sec = (10.0.sec = >) (10.xlist = (10.Olist = - (10.Secs = (10.1.Sec = (10.1.Ti = (a) Events of Default of Seller)
(10.1.sec = (10.1.0.sec = >) (10.1.xlist = (10.1.Olist = - (10.1.Secs = (10.1.secs = (10.1.1.sec = (10.1.1.0.sec = The occurrence of any of the following shall constitute an immediate Event of Default without the opportunity to cure:)
(10.1.1.xlist = - (10.1.1.secs = (10.1.1.1.sec = Seller dissolution or liquidation;)
- (10.1.1.2.sec = Seller assignment of this Agreement or any of its rights under it for the benefit of creditors;)
- (10.1.1.3.sec = Seller abandonment of construction and/or operation of the Facility; and)
- (10.1.1.4.sec = Seller filing of a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or Seller voluntarily taking advantage of any such law or act by answer or otherwise.)
)
) (10.1.1.00.sec = >) )
- (10.1.2.sec = (10.1.2.0.sec = The occurrence of any of the following shall constitute an Event of Default of Seller unless Seller shall have cured the same within ninety (90) days after receipt by Seller of written notice thereof from BPA:)
(10.1.2.xlist = - (10.1.2.secs = (10.1.2.1.sec = Seller’s failure to meet the Completion Date as set forth in Section 6(a) (subject to the extensions of time available to Seller under Section 6(a));)
- (10.1.2.2.sec = Seller’s assignment of this Agreement or any of Seller’s rights under this Agreement or the sale or transfer of voting control of Seller or Seller’s sale or other transfer of any material portion of its interest in the Facility without obtaining BPA’s prior written consent pursuant to Section 18;)
- (10.1.2.3.sec = The filing of a case in bankruptcy or any proceeding under any other insolvency law against Seller as debtor or its parent or any other affiliate that could materially impact Seller’s ability to perform its obligations hereunder; provided, however, that Seller does not obtain a stay or dismissal of the filing within ninety (90) days of the date of such filing;)
- (10.1.2.4.sec = After the Completion Date, Seller tampering with or adjustment of the Metering Devices for the BPA Wind Turbines in ways not expressly permitted by Sections 5(c)(2) and 5(c)(3);)
- (10.1.2.5.sec = After the Completion Date, the sale by Seller to a third party, or diversion by Seller for any use, of the Energy Output committed to BPA by Seller absent BPA’s prior written consent to such diversion or use;)
- (10.1.2.6.sec = After the Completion Date, Seller’s failure to maintain in effect any material agreements required to deliver the Energy Output to the Point of Delivery;)
- (10.1.2.7.sec = Commencing on the first (1st) anniversary of the Completion Date, Seller’s failure to use commercially reasonable efforts to obtain, for the BPA Wind Turbines, an average Availability Factor greater than seventy-five percent (75%) in the immediately preceding twelve (12) consecutive months; provided that such failure is not the result of Force Majeure;)
- (10.1.2.8.sec = Seller’s failure to acquire or maintain permits needed to construct and operate the Facility;)
- (10.1.2.9.sec = Seller’s failure to acquire or maintain land rights needed to access, construct, and operate the Facility; or)
- (10.1.2.10.sec = Seller’s failure to comply with any other material obligation under this Agreement.)
)
) (10.1.2.00.sec = >) ) (10.1.3.sec = (10.1.3.0.sec = Seller’s failure to make any payment when required under this Agreement shall constitute an Event of Default of Seller unless) (10.1.3.xlist = (10.1.3.Olist = - (10.1.3.Secs = (10.1.3.secs = (10.1.3.1.sec = Seller shall have cured the same within thirty (30) days after receipt by Seller of written notice thereof from BPA or)
- (10.1.3.2.sec = Seller has filed in good faith a Billing Dispute with respect to such unpaid amounts and complied with Section 8(d).)
)
) ) ) (10.1.3.00.sec = >) ) ) ) ) ) (10.1.00.sec = >) ) ) (10.2.Sec = (10.2.Ti = Events of Default of BPA)
(10.2.sec = (10.2.0.sec = >) (10.2.xlist = (10.2.Olist = - (10.2.Secs = (10.2.secs = (10.2.1.sec = (10.2.1.0.sec = The following shall constitute Events of Default of BPA upon their occurrence and no cure period shall be applicable:)
(10.2.1.xlist = (10.2.1.Olist = - (10.2.1.Secs = (10.2.1.secs = (10.2.1.1.sec = BPA’s dissolution or liquidation, provided that division of BPA into multiple entities shall not constitute dissolution or liquidation; or)
- (10.2.1.2.sec = BPA’s general assignment of this Agreement or any of its rights hereunder for the benefit of creditors.)
)
)
) ) (10.2.1.00.sec = >) ) (10.2.2.sec = (10.2.2.0.sec = The following shall constitute Events of Default of BPA upon their occurrence unless cured within ninety (90) days after the receipt by BPA of written notice thereof from Seller:) (10.2.2.xlist = (10.2.2.Olist = - (10.2.2.Secs = (10.2.2.secs = (10.2.2.1.sec = BPA fails to purchase the entire Energy Output of the BPA Wind Turbines in accordance with Section 6(b);)
- (10.2.2.2.sec = BPA defaults on its obligations under the Delivery Arrangements Agreement, and such default renders Seller unable to deliver the Energy Output at the Point of Delivery or affects Seller’s right to be paid under this Agreement for delivery at the Point of Delivery for its Energy Output;)
- (10.2.2.3.sec = BPA’s assignment of this Agreement or any of BPA’s rights under this Agreement without obtaining Seller’s prior written consent pursuant to Section 18; or)
- (10.2.2.4.sec = BPA’s failure to comply with any other material obligation under this Agreement after receipt of notice thereof.)
)
) ) ) (10.2.2.00.sec = >) ) (10.2.3.sec = BPA’s failure to make any payment when required under this Agreement shall constitute an Event of Default unless (1) BPA shall have cured the same within thirty (30) days after receipt by BPA of written notice thereof or (2) BPA has filed in good faith a Billing Dispute with respect to such unpaid amounts and complied with Section 8(d).) ) ) ) ) (10.2.00.sec = >) ) ) (10.3.Sec = (10.3.Ti = Termination for Cause)
(10.3.sec = In addition to any other right or remedy available at law or in equity or pursuant to this Agreement, including the right to seek damages for breach of this Agreement, the non-defaulting Party may, upon written notice to the other Party, terminate this Agreement if any one or more of the Events of Default described in this Section occur and are not cured within the time periods set forth herein. In the event of a termination by BPA due to an Event of Default under Section 10(a)(2)(i), neither Party shall have any further liability or obligation to the other Party with respect to this Agreement, except Seller shall, after receipt of a detailed, written itemization and description, reimburse BPA for reasonable payments made by BPA pursuant to the Delivery Arrangements Agreement. Neither Party shall have the right to terminate this Agreement except as provided for upon the occurrence of an Event of Default as described above or as otherwise may be explicitly provided for in this Agreement. All remedies in this Agreement shall survive termination or cancellation of this Agreement and are cumulative.) ) (10.4.Sec = (10.4.Ti = No Consequential Damages)
(10.4.sec = In no event shall either Party be liable for the other Party’s alleged lost profits or other consequential damages; provided, however, that any amounts which are expressly provided herein to be payable shall not be construed as lost profits or consequential damages.) ) ) ) ) (10.00.sec = >) ) ) (11.Sec = (11.Ti = Termination for Convenience)
(11.sec = (11.0.sec = >) (11.xlist = - (11.Secs = (11.1.Sec = (11.1.Ti = Termination by BPA for Convenience)
(11.1.sec = (11.1.0.sec = BPA may provide notice of its intent to terminate this Agreement for convenience either during the period between the execution of this Agreement and the date that Seller provides written notice to BPA, in the form of Exhibit B, that the Facility is ready for construction (the “Initial Period”), or after the Facility has achieved Commercial Operation (the “Operation Period”).) (11.1.xlist = (11.1.Olist = - (11.1.Secs = (11.1.secs = (11.1.1.sec = During the Initial Period, BPA must provide its notice of intent to terminate this Agreement for convenience at least thirty (30) days prior to the actual date of termination.)
- (11.1.2.sec = During the Operation Period, BPA shall provide its notice of intent to terminate this Agreement for convenience at least ninety (90) days prior to the actual date of termination.)
- (11.1.3.sec = If a termination occurs under this Section 11(a), then BPA shall pay to Seller in the case of termination under clause (1) or (2), above, [an amount to be negotiated].)
)
)
) ) (11.1.00.sec = >) ) ) (11.2.Sec = (11.2.Ti = Termination Under Section 11(a))
(11.2.sec = Termination of this Agreement pursuant to Section 11(a) shall relieve the Parties of all further obligations under this Agreement upon full and complete payment by BPA of all amounts due and owing pursuant to this Section 11 and Exhibit D.) ) ) ) (11.00.sec = >) ) ) (12.Sec = (12.Ti = Contract Administration and Notices)
(12.sec = (12.0.sec = >) (12.xlist = (12.Olist = - (12.Secs = (12.1.Sec = (12.1.Ti = Notices)
(12.1.sec = (12.1.0.sec = All notices, demands or other communications required from or given by a Party pursuant to this Agreement shall be provided to the other Party in accordance with the requirements set forth in this section. All notices, demands or other communications required hereunder shall be given or made in writing and shall be delivered personally, sent by facsimile (fax), sent by a courier service, or mailed by registered or certified mail, postage prepaid to the parties at the following addresses, or at such other address as may be designated by notice given pursuant hereto:) (12.1.xlist = - (12.1.secs = (12.1.1.sec = (12.1.1.0.sec = If to Seller: )
(12.1.1.xlist = - (12.1.1.secs = (12.1.1.1.sec = [Address])
- (12.1.1.2.sec = Attn: _________________)
- (12.1.1.3.sec = Phone: _________________)
- (12.1.1.4.sec = Fax: _________________)
)
) (12.1.1.00.sec = >) )
- (12.1.2.sec = (12.1.2.0.sec = If to BPA: Bonneville Power Administration)
(12.1.2.xlist = - (12.1.2.secs = (12.1.2.1.sec = 905 N.E. 11th Street (97232))
- (12.1.2.2.sec = P.O. Box 3621)
- (12.1.2.3.sec = Portland, OR 97208-3621)
- (12.1.2.4.sec = Attn: Wind Project Manager – PGC-6)
- (12.1.2.5.sec = Contract Generating Resources)
- (12.1.2.6.sec = Phone: 503-230-4386)
- (12.1.2.7.sec = Fax: 503-230-4973)
)
) (12.1.2.00.sec = >) )
) ) (12.1.00.sec = Notices given by hand, telegraphically transmitted, or sent by telecopy shall be deemed given the day so given, transmitted or sent. Notices mailed or sent by a courier service as provided herein shall be deemed given on the third Business Day following the date so mailed or on the date of actual receipt, whichever is earlier.) ) ) (12.2.Sec = (12.2.Ti = Representative for Notice)
(12.2.sec = Each Party shall maintain a designated representative to receive notices. Such representative may, at the option of each Party, be the same person as that Party’s representative or alternate representative on the Operating Committee, or a different person. Either Party may, by written notice to the other, pursuant to Section 12(a) above, change the representative or the address to which such notices and communications are to be sent.) ) (12.3.Sec = (12.3.Ti = Authority of Representatives)
(12.3.sec = The Parties’ representatives designated in Section 12(b) above shall have authority to act for their respective principals in all technical matters relating to performance of this Agreement and to attempt to resolve disputes or potential disputes. However, they shall not have the authority to amend or modify any provision of this Agreement.) ) (12.4.Sec = (12.4.Ti = Operating Records)
(12.4.sec = Seller and BPA shall each keep complete and accurate records and all other data required by each of them for the purposes of proper administration of this Agreement, including such records as may be required by state or Federal regulatory authorities.) ) (12.5.Sec = (12.5.Ti = Billing and Payment Records)
(12.5.sec = To facilitate payment and verification, Seller and BPA shall keep all books and records necessary for billing and payments in accordance with the provisions of Section 7 and grant the other Party reasonable access to those records.) ) (12.6.Sec = (12.6.Ti = Examination of Records)
(12.6.sec = Seller and BPA may examine the billing and operating records and data kept by the other relating to transactions under, and administration of, this Agreement at any time during the period the records are required to be maintained, upon request and during normal business hours.) ) ) ) ) (12.00.sec = >) ) ) (13.Sec = (13.Ti = Dispute Resolution)
(13.sec = (13.0.sec = >) (13.xlist = (13.Olist = - (13.Secs = (13.secs = (13.1.sec = The Parties shall make a good faith effort to negotiate a resolution of disputes before initiating litigation. During a contract dispute or contract issue between the Parties arising out of this Agreement, the Parties shall continue performance under this Agreement pending resolution of the dispute, unless to do so would be impossible or impracticable. Seller reserves the right to seek judicial resolution of any dispute arising under this Agreement that is not subject to arbitration under this Section 13.)
- (13.2.sec = Final actions subject to section 9(e) of the Northwest Power Act are not subject to binding arbitration and shall remain within the exclusive jurisdiction of the United States Ninth Circuit Court of Appeals. Any dispute regarding any rights of the Parties under any BPA policy, including the implementation of such policy, shall not be subject to arbitration under this Agreement. Seller reserves the right to seek judicial resolution of any dispute arising under this Agreement that is not subject to arbitration under this Section 13. For purposes of this Section 13, BPA policy means any written document adopted by BPA as a final action in a decision record or record of decision that establishes a policy of general application, or makes a determination under an applicable statute. If either Party asserts that a dispute is excluded from arbitration under this Section 13, either Party may apply to the Federal court having jurisdiction for an order determining whether such dispute is subject to arbitration under this Section 13.)
- (13.3.sec = Any contract dispute or contract issue between the Parties arising out of this Agreement, except for disputes that are excluded through Section 13(a) above, shall be subject to binding arbitration. The Parties shall make a good faith effort to resolve such disputes before initiating arbitration proceedings. During arbitration, the Parties shall continue performance under this Agreement pending resolution of the dispute, unless to do so would be impossible or impracticable.)
- (13.4.sec = Any arbitration shall take place in Portland, Oregon, unless the Parties agree otherwise. The CPR Institute for Dispute Resolution’s arbitration procedures for commercial arbitration, Non-Administered Arbitration Rules (CPR Rules), shall be used for each dispute; provided, however, that: (1) the Parties shall have the discovery rights provided in the Federal Rules of Civil Procedure unless the Parties agree otherwise; and (2) for claims of $1 million or more, each arbitration shall be conducted by a panel of three neutral arbitrators. The Parties shall select the arbitrators from a list containing the names of 15 qualified individuals supplied by the CPR Institute for Dispute Resolution. If the Parties cannot agree upon three arbitrators on the list within 20 Business Days, the Parties shall take turns striking names from the list of proposed arbitrators. The Party initiating the arbitration shall take the first strike. This process shall be repeated until three arbitrators remain on the list, and those individuals shall be designated as the arbitrators. For disputes involving less than $1 million, a single neutral arbitrator shall be selected consistent with section 6 of the CPR Rules.)
- (13.5.sec = Except for arbitration awards, which declare the rights and duties of the Parties under this Agreement, the payment of monies shall be the exclusive remedy available in any arbitration proceeding. Under no circumstances shall specific performance be an available remedy against BPA. The arbitration award shall be final and binding on both Parties, except that either Party may seek judicial review based upon any of the grounds referred to in the Federal Arbitration Act, 9 U.S.C. §1-16 (1988). Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof.)
- (13.6.sec = Each Party shall be responsible for its own costs of arbitration, including legal fees. The arbitrators may apportion all other costs of arbitration between the Parties in such manner as they deem reasonable taking into account the circumstances of the case, the conduct of the Parties during the proceeding, and the result of the arbitration.)
)
) ) ) (13.00.sec = >) ) ) (14.Sec = (14.Ti = Force Majeure)
(14.sec = (14.0.sec = >) (14.xlist = (14.Olist = - (14.Secs = (14.1.Sec = (14.1.Ti = Definition of Force Majeure)
(14.1.sec = The term “Force Majeure,” as used in this Agreement, means causes or events beyond the reasonable control of, and without the fault or negligence of the party claiming Force Majeure, including, without limitation, acts of God, sudden actions of the elements such as floods, earthquakes, hurricanes, wind speeds in excess of safe working limits, or tornadoes; sabotage; vandalism beyond that which could reasonably be prevented by Seller; terrorism; war; riots; fire; explosion; severe cold or hot weather or snow or other extreme or severe weather conditions; blockage, insurrection, strike, slow down, or labor disruptions (even if such difficulties could be resolved by conceding to the demands of a labor group); and requirements, actions or failures to act by Transmission System Operator, but only if such requirements, actions or failures to act prevent or delay performance; the adoption or change in any rule or regulation or judicial decision lawfully imposed by Federal, state, or local government bodies; inability, despite due diligence, to obtain required licenses, permits, or approvals for the construction and operation of the Facility under the terms of this Agreement; and the mechanical or equipment breakdown of the Grid to the extent not caused by the party claiming the Force Majeure. The term “Force Majeure” does not include any full or partial curtailment in the electric output of the Facility that is caused by or arises from the act or acts of any third party, including, without limitation, any vendor, materialman, customer, or supplier of Seller, unless such act or acts is or are itself or themselves excused by reason of Force Majeure. The term “Force Majeure” does not include any full or partial curtailment in the electric output of the Facility that is caused by or arises from a mechanical or equipment breakdown of the Facility, or fires, explosions, or other mishap or events or conditions attributable to normal wear and tear or flaws related to the Facility, unless caused by a Force Majeure event specifically listed in the first sentence of this Section 14(a).) )
- (14.2.Sec = (14.2.Ti = Applicability of Force Majeure)
(14.2.sec = (14.2.0.sec = Neither Party shall be responsible or liable for any delay or failure in its performance under this Agreement due to conditions or events of Force Majeure (except that any and all obligations to pay money shall not be delayed or excused by conditions or events of Force Majeure), provided that:) (14.2.xlist = (14.2.Olist = - (14.2.Secs = (14.2.secs = (14.2.1.sec = the non-performing Party gives the other Party prompt written notice describing the particulars of the occurrence of the Force Majeure;)
- (14.2.2.sec = the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure;)
- (14.2.3.sec = the non-performing Party proceeds with reasonable diligence to remedy its inability to perform and provides weekly progress reports to the other Party describing actions taken to end the Force Majeure; and)
- (14.2.4.sec = the non-performing Party shall provide written notice of its ability to resume performance of its obligations under this Agreement.)
)
)
) ) (14.2.00.sec = >) ) ) (14.3.Sec = (14.3.Ti = Limitations on Effect of Force Majeure)
(14.3.sec = In no event will any delay or failure of performance caused by any conditions or events of Force Majeure extend this Agreement beyond its stated term. In the event of any delay or failure of performance caused by conditions or events of Force Majeure, which would otherwise constitute an Event of Default pursuant to Section 10, the cure provisions of Section 10 shall not apply and such delay or failure of performance, if not previously cured, shall be extended day-for-day by the event of Force Majeure; provided that such delay or failure shall become an Event of Default one (1) year from the date of notice provided for in Section 10. The other Party may, at any time following the end of such one-year period, terminate this Agreement upon written notice to the affected Party, without further obligation by the terminating Party except as to costs and unpaid balances incurred prior to the effective date of such termination. The other Party may, but shall not be obligated to, extend such one year period, for such additional time as it, at its sole discretion, deems appropriate, if the affected Party is exercising due diligence in its efforts to cure the conditions or events of Force Majeure.) ) (14.4.Sec = (14.4.Ti = Delays Attributable to BPA)
(14.4.sec = Seller shall be excused from delays in meeting performance deadlines under this Agreement, on a day-for-day basis, for any delays attributable to BPA, including, without limitation, delays in BPA obtaining any required permits, consents, or approvals and agreements, including, without limitation, the Delivery Arrangements Agreement, from governmental authorities or third parties required for BPA to perform its obligations under this Agreement. Seller shall provide BPA with timely written notice that a delay allegedly attributable to BPA has occurred or is expected to occur. The notice shall specify the length of any extension to a performance deadline to which Seller feels entitled.) ) ) ) ) (14.00.sec = >) ) ) (15.Sec = (15.Ti = Representations and Warranties)
(15.sec = (15.0.sec = >) (15.xlist = (15.Olist = - (15.Secs = (15.1.Sec = (15.1.Ti = Seller’s Representations and Warranties)
(15.1.sec = (15.1.0.sec = Seller hereby represents and warrants that as of the date hereof:) (15.1.xlist = - (15.1.secs = (15.1.1.sec = Seller is an [which state] corporation, duly organized, validly existing and in good standing under the laws of the State of ______, and is qualified to perform its obligations under this Agreement in [state where facility is located] and in each other jurisdiction where the failure to so qualify would have a material adverse effect upon the business or financial condition of Seller; and Seller has all requisite power and authority to conduct its business, to own its properties, and to execute, deliver, and perform its obligations under this Agreement.)
- (15.1.2.sec = (15.1.2.0.sec = The execution, delivery, and performance of its obligations under this Agreement by Seller have been duly authorized by all necessary corporate action, and do not and will not:)
(15.1.2.xlist = - (15.1.2.secs = (15.1.2.1.sec = require any consent or approval of Seller’s members other than that which has been obtained and is in full force and effect;)
- (15.1.2.2.sec = violate any provision of law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award currently in effect having applicability to Seller or violate any provision in any charter documents of Seller, the violation of which could have a material adverse effect on the ability of Seller to perform its obligations under this Agreement;)
- (15.1.2.3.sec = result in a breach or constitute a default under Seller’s charter documents, or under any agreement relating to the management or affairs of Seller or any indenture or loan or credit agreement, or any other agreement, lease, or instrument to which Seller is a party or by which Seller or its properties or assets may be bound or affected, the breach or default of which could reasonably be expected to have a material adverse effect on the ability of Seller to perform its obligations under this Agreement; or)
- (15.1.2.4.sec = result in, or require the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest, or other charge or encumbrance of any nature (other than as may be contemplated by this Agreement) upon or with respect to any of the assets or properties of Seller now owned or hereafter acquired, the creation or imposition of which could reasonably be expected to have a material adverse effect on the ability of Seller to perform its obligation under this Agreement.)
)
) (15.1.2.00.sec = >) )
- (15.1.3.sec = This Agreement is a valid and binding obligation of Seller.)
- (15.1.4.sec = The execution and performance of this Agreement will not conflict with or constitute a breach or default under any contract or agreement of any kind to which Seller is a party or any judgment, order, statute, or regulation that is applicable to Seller or the Facility.)
- (15.1.5.sec = To its best knowledge, all approvals, authorizations, consents, or other action required by any governmental authority to authorize Seller’s execution, delivery, and performance under this Agreement have been duly obtained and are in full force and effect.)
)
) (15.1.00.sec = >) ) ) (15.2.Sec = (15.2.Ti = BPA’s Representations and Warranties)
(15.2.sec = (15.2.0.sec = BPA hereby represents and warrants the following:) (15.2.xlist = - (15.2.secs = (15.2.1.sec = BPA is authorized by Federal law, including the Northwest Power Act and other applicable laws, to dispose of electric power generated at various Federal hydroelectric projects in the Pacific Northwest or acquired from other resources, including wind energy facilities.)
- (15.2.2.sec = (15.2.2.0.sec = The execution and performance of BPA’s obligations under this Agreement has been duly authorized by all necessary agency action, and does not and will not:)
(15.2.2.xlist = - (15.2.2.secs = (15.2.2.1.sec = require any further agency consent or approval;)
- (15.2.2.2.sec = to the knowledge of BPA, violate any provision of Federal law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award currently in effect having applicability to BPA, or conflict with or constitute a breach or default under any contract or agreement of any kind to which BPA is a party, the violation, conflict, or breach or default of which could have a material adverse effect on the ability of BPA to perform its obligations under this Agreement. (3) This Agreement is a valid and binding obligation of BPA.)
)
) (15.2.2.00.sec = >) ) ) ) (15.2.00.sec = >) ) ) ) ) ) (15.00.sec = >) ) ) (16.Sec = (16.Ti = Insurance and Indemnity)
(16.sec = (16.0.sec = >) (16.xlist = - (16.Secs = (16.1.Sec = (16.1.Ti = Evidence of Insurance)
(16.1.sec = (16.1.0.sec = >) (16.1.xlist = (16.1.Olist = - (16.1.Secs = (16.1.secs = (16.1.1.sec = During the construction of the Facility, Seller shall, at Seller’s expense, maintain or cause to be maintained property damage insurance covering all wind-electric generation facilities at the Facility on an “all-risk” basis, for the full replacement value of such facilities.)
- (16.1.2.sec = (16.1.2.0.sec = Commencing on the Completion Date, Seller shall, at Seller’s expense, maintain or cause to be maintained appropriate property and casualty loss insurance for the value of the Facility, and other appropriate insurance for the Facility in accordance with prudent wind industry practice, including as follows:)
(16.1.2.xlist = - (16.1.2.secs = (16.1.2.1.sec = Commercial General Liability covering bodily injury and property damage, boiler and machinery, products/completed operations, contractual and personal injury liability, with limits not less than $5,000,000 combined single limit per occurrence;)
- (16.1.2.2.sec = All-risk property insurance including earthquake, tornado, and flood, subject to appropriate sublimits, covering physical loss or damage to all real and personal property located at the Facility.)
)
) (16.1.2.00.sec = >) )
- (16.1.3.sec = The insurance shall acknowledge BPA, its officers, agents, employees, and successors in interest as additional insureds.)
- (16.1.4.sec = The insurance shall not affect Seller’s liability under the indemnity provisions of this Agreement and shall not be terminated, expire nor be materially altered except on thirty (30) days prior written notice to BPA and with BPA’s written concurrence. Such concurrence shall not be unreasonably withheld.)
- (16.1.5.sec = As evidence that policies do in fact provide the required coverages and limits of insurance and are in full force and effect, Seller, and/or its contractor or representative, shall, at least fourteen (14) days prior to the Completion Date, furnish to BPA certificates of insurance.)
)
) ) ) (16.1.00.sec = >) ) ) (16.2.Sec = (16.2.Ti = Limitation on Liability)
(16.2.sec = Neither BPA nor Seller (“First Party”) shall be liable, whether in warranty, tort or strict liability, to the other Party (“Second Party”) for any injury or death to any person, or for any loss or damage to any property, caused by or arising out of any electric disturbance of the First Party’s electric system, whether or not such electric disturbance resulted from the First Party’s negligent act or omission. Each Second Party shall release the First Party from, and shall indemnify and hold harmless the First Party from, any such liability. As used in this Section, (1) the term “Party” means, in addition to such Party itself, its agents, directors, officers, contractors and employees; (2) the term “damage” means all damage, including consequential damage; and (3) the term “persons” means any person, including those not connected with either Party to this Agreement.) ) ) ) (16.00.sec = >) ) ) (17.Sec = (17.Ti = Regulatory Jurisdiction and Compliance)
(17.sec = (17.0.sec = >) (17.xlist = - (17.secs = (17.1.sec = Each party shall at all times comply with all applicable laws, ordinances, rules, and regulations applicable to it. As applicable, each party shall give all required notices, shall procure and maintain all necessary governmental permits, licenses, and inspections necessary for performance of this Agreement, and shall pay its respective charges and fees in connection therewith.)
- (17.2.sec = Seller shall make available, upon BPA’s reasonable request, any personnel of Seller and any records relating to the Facility to the extent that BPA requires the same in order to fulfill any regulatory reporting requirements, or to assist BPA in litigation, including, but not limited to, proceedings before utility regulatory commissions. BPA shall make available, upon Seller’s reasonable request, any personnel of BPA and any records relating to the Facility to the extent that Seller requires the same in order to fulfill any regulatory reporting requirements, or to assist Seller in litigation, including, but not limited to, proceedings before utility regulatory commissions.)
)
) (17.00.sec = >) ) ) (18.Sec = {18.Ti} (18.sec = (18.0.sec = ) (18.xlist = ) (18.00.sec = ) ) ) (19.Sec = (19.Ti = Confidential Information)
(19.sec = (19.0.sec = >) (19.xlist = - (19.Secs = (19.1.Sec = (19.1.Ti = Availability)
(19.1.sec = The Parties have and will develop certain information, processes, know-how, techniques and procedures concerning the Facility (collectively, “Information”) which they consider confidential and proprietary. Notwithstanding the confidential and proprietary nature of such Information, BPA and Seller (each, the “Disclosing Party”) may make this Information available to the other (each, a “Receiving Party”) subject to the provisions of this section.) )
- (19.2.Sec = (19.2.Ti = Designation)
(19.2.sec = At the time of furnishing or making available for inspection such confidential or proprietary Information, the Disclosing Party shall expressly designate by label, stamp, or oral communication (to be confirmed in writing) the Information which it considers to be confidential and/or proprietary.) )
- (19.3.Sec = (19.3.Ti = Obligations)
(19.3.sec = The Receiving Party’s obligations with respect to the use or disclosure of such Information thereafter will be as set forth in this section.) )
- (19.4.Sec = (19.4.Ti = Conditions and Restrictions)
(19.4.sec = (19.4.0.sec = Upon receiving or learning of Information designated as confidential and/or proprietary by the Disclosing Party, the Receiving Party shall:) (19.4.xlist = (19.4.Olist = - (19.4.Secs = (19.4.secs = (19.4.1.sec = treat such Information as confidential and use reasonable care not to divulge such Information to any third party except as required by law, subject to the restrictions set forth below;)
- (19.4.2.sec = restrict access to such Information to employees (and others who agree to be bound by this Agreement) whose access is reasonably necessary in developing the Facility and for the purposes of this Agreement;)
- (19.4.3.sec = use such Information solely for the purpose of developing the Facility and for the purposes of this Agreement; and)
- (19.4.4.sec = upon the termination of this Agreement, destroy or return any such Information in written or other tangible form and any copies thereof, if asked to do so in writing by the Disclosing Party.)
)
)
) ) (19.4.00.sec = >) ) ) (19.5.Sec = (19.5.Ti = Exceptions)
(19.5.sec = (19.5.0.sec = The restrictions in this section do not apply to:) (19.5.xlist = - (19.5.secs = (19.5.1.sec = the contents of this Agreement, which becomes a public document upon execution;)
- (19.5.2.sec = information which is, or becomes, publicly known or available otherwise than through the action of the Receiving Party in violation of this Agreement;)
- (19.5.3.sec = information which is in the possession of the Receiving Party prior to receipt from the Disclosing Party or is independently developed by the Receiving Party; provided that the person or persons developing same have not had access to such Information; or)
- (19.5.4.sec = information which is, in the reasonable written opinion of counsel to the Receiving Party, required to be disclosed pursuant to applicable law or regulation (including any Freedom of Information Act request); provided, however, that the Receiving Party, prior to such disclosure, shall provide reasonable advance notice to the Disclosing Party of the time and scope of the intended disclosure in order to permit the Disclosing Party opportunity to obtain a protective order or otherwise seek to prevent or limit the scope or otherwise impose conditions upon such disclosure.)
)
) (19.5.00.sec = >) ) ) (19.6.Sec = (19.6.Ti = Term of Obligations)
(19.6.sec = The obligations of the Parties under this section shall remain in full force and effect for two (2) years following the termination of this Agreement.) ) ) ) (19.00.sec = >) ) ) (20.Sec = (20.Ti = Miscellaneous)
(20.sec = (20.0.sec = >) (20.xlist = - (20.Secs = (20.1.Sec = (20.1.Ti = (a) Waiver)
(20.1.sec = The failure of either Party to enforce or insist upon compliance with or strict performance of any of the terms or conditions of this Agreement, or to take advantage of any of its rights thereunder, shall not constitute a waiver or relinquishment of any such terms, conditions, or rights, but the same shall be and remain at all times in full force and effect.) )
- (20.2.Sec = (20.2.Ti = (b) Taxes)
(20.2.sec = Seller shall be responsible for any and all present or future Federal, state, municipal, or other lawful taxes applicable by reason of the ownership and operation of the Facility and the sale of energy under this Agreement and all ad valorem taxes relating to the Facility and the Interconnection Facilities.) )
- (20.3.Sec = (20.3.Ti = (c) Disclaimer of Third Party Beneficiary Rights)
(20.3.sec = In executing this Agreement, BPA does not, nor should it be construed to, extend its credit or financial support for the benefit of any third parties lending money to or having other transactions with Seller. Nothing in this Agreement shall be construed to create any duty to, or standard of care with reference to, or any liability to, any person not a party to this Agreement.) )
- (20.4.Sec = (20.4.Ti = (d) Relationship of the Parties)
(20.4.sec = This Agreement shall not be interpreted to create an association, joint venture, or partnership between the Parties nor to impose any partnership obligation or liability upon either Party. Neither Party shall have any right, power, or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as an agent or representative of, the other Party. Seller shall be solely liable for the payment of all wages, taxes, and other costs related to the employment of persons to perform such services, including all Federal, state, and local income, social security, payroll, and employment taxes and statutorily mandated workers’ compensation coverage. None of the persons employed by Seller shall be considered employees of BPA for any purpose; nor shall Seller represent to any person that he or she is or shall become a BPA employee.) )
- (20.5.Sec = (20.5.Ti = (e) Survival of Obligations)
(20.5.sec = Cancellation, expiration, or earlier termination of this Agreement shall not relieve the Parties of obligations that by their nature should survive such cancellation, expiration, or termination, including, without limitation, warranties, remedies, or indemnities.) )
- (20.6.Sec = (20.6.Ti = (f) Severability)
(20.6.sec = In the event any of the terms, covenants, or conditions of this Agreement, its Exhibits, or the application of any such terms, covenants, or conditions, shall be held invalid, illegal, or unenforceable by any court having jurisdiction, all other terms, covenants, and conditions of the Agreement and their application not adversely affected thereby shall remain in force and effect, provided that the remaining valid and enforceable provisions materially retain the essence of the parties' original bargain.) )
- (20.7.Sec = (20.7.Ti = (g) Interpretation)
(20.7.sec = Unless the context of this Agreement otherwise requires, (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement including Exhibits; (d) the terms “Section” or “Exhibit” refer to the specified Section or Exhibit of this Agreement; and (e) any reference to the entirety or any part of this Agreement shall refer to any amendment, supplement or replacement of the same. Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.) )
- (20.8.Sec = (20.8.Ti = (h) Complete Agreement; Amendments)
(20.8.sec = The terms and provisions contained in this Agreement and referenced documents constitute the entire Agreement between BPA and Seller and shall supersede all previous communications, representations, or agreements, either verbal or written, between BPA and Seller with respect to the sale of electric capacity and energy from the Facility. This Agreement may be amended, changed, modified, or altered; provided that such amendment, change, modification, or alteration shall be in writing and signed by both Parties hereto.) )
- (20.9.Sec = (20.9.Ti = (i) Binding Effect)
(20.9.sec = This Agreement, as it may be amended from time to time pursuant to this Section, shall be binding upon and inure to the benefit of the Parties’ respective successors-in-interest, legal representatives, and assigns.) )
- (20.10.Sec = (20.10.Ti = (j) Headings)
(20.10.sec = Captions and headings used in the Agreement are for ease of reference only and do not constitute a part of this Agreement.) )
- (20.11.Sec = (20.11.Ti = (k) Counterparts)
(20.11.sec = This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument.) )
- (20.12.Sec = (20.12.Ti = (l) Choice of Law)
(20.12.sec = This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon (without reference to choice of law doctrine), except to the extent the Parties’ rights and obligations are required to be governed by United States Federal law, then such rights and obligations shall be governed by United States Federal law. (m) Equal Employment Opportunity Compliance Certification Seller acknowledges that BPA is subject to various Federal laws, executive orders, and regulations regarding equal employment opportunity and affirmative action. Only to the extent that such Federal laws, executive orders and regulations are applicable to Seller as a vendor to BPA due to the sale of Energy Output under the terms of this Agreement and are required by law to be incorporated herein, such Federal laws, executive orders and regulations, including, but not limited to, 41 C.F.R. § 60-1.4(a)(1-7), are incorporated by reference into this Agreement.) ) )
) (20.00.sec = >) ) ) ) ) ) (00.sec = >) ) )
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